When Do Misogynistic Lyrics Become Hate Speech?

Hip-hop, free speech, misogyny, and Action Bronson at North by Northeast.

Toronto’s North By Northeast (NXNE) music festival found itself mired in controversy this year over the misogynistic lyrics and imagery of US-based hip-hop musician Action Bronson. The 31-year-old New York rapper was slated to perform with other artists at a 21 June free festival show at Yonge-Dundas Square, the public concert stage in the heart of the city’s downtown.

On 26 May, a month before the show, a Change.org petition was launched by Toronto resident Erica Shiner calling on the festival organizers to drop Action Bronson from the bill. The petition cited some of the violent and misogynistic aspects of his work, and decried his material as hate speech:

Although many in the Hip Hop community and music industry may be aware of Action Bronson's violent misogyny, many others remain unaware of his history of recording music that brags about gang-raping and murdering women. We are petitioning to have this artist removed from the line-up of this show, on the grounds that he produces hate speech. A musician who glorifies rape and violence against women should not be invited to perform at a public space in our city.

The NXNE festival initially defended its lineup, noting that Action Bronson had also performed at the festival in 2012. “Action Bronson performed at Yonge-Dundas Square as part of NXNE in 2012 with Killer Mike, Raekwon and Ghostface Killah,” stated the organizers in a 27 May media release. 'It was a positive concert that was described by reviewers as 'laid back', 'a lot of fun' and a 'world class hip-hop showcase'. NXNE is confident the lineup on June 21 at Yonge-Dundas Square will make for another enjoyable day of music in a public space… NXNE believes each and every one of these artists have the right to express their views through music, but those views belong to them and them alone. Those who are offended by an artist are invited to check out other Festival showcases…”

The release also noted that the festival featured performers “who have been lauded for the undisguised feminist viewpoints in their music,” as though that somehow balanced things out.

Two days later, their tune had changed. The petition garnered over 38,000 signatures within a week, and even the city’s mayor spoke out against the concert. In a 29 May media release, the still defiant organizers capitulated to demands that Action Bronson be removed from the public (free) stage, but denounced efforts to silence him and instead offered him the chance of performing at another ticketed venue:

We remain fundamentally committed to presenting this artist on a Toronto stage. We are not moving the Action show because we believe in censoring him or any other artists. In fact, we find the limiting of artistic expression distasteful. When artistic expression is limited, freedom and the evolution of ideas is often the casualty. Hopefully, Action Bronson will accept our invitation to play at another, ticketed venue in the city so the public can decide for themselves if his work has merit… We hope that this series of events does not foster some type of artistic chill in Toronto and its public spaces. --

The petition that eventually drove Action Bronson off the stage and festival stated that “he produces hate speech”. In the court of public opinion, the petition’s drafter was clearly correct – over 44,000 signatories agreed. Action Bronson’s lyrics and imagery are repellent. Yet legally designating language as hateful – and particularly toward women – is a complicated affair.

Anti-hate speech provisions existed – until 2013 – under two pieces of legislation: Canada’s Human Rights Act, and the Criminal Code of Canada. Hate speech complaints filed under the Criminal Code of Canada require the approval of the Attorney General to proceed, and are handled in a court of law. Complaints under the Human Rights Act, by contrast, were easier to file, and were adjudicated by provincial human rights panels. There was one other complication that favoured use of the Human Rights Act: until 2015, ‘sex’ was not included under the Criminal Code of Canada’s hate speech provisions, meaning hate speech against women could not be pursued under that route. Why did it take so long for women to be included?

“That’s a good question,” says Kathleen Mahoney, a law professor at the University of Calgary. “The statute was drafted back in the ‘50s and it was designed primarily to deal with anti-Semitism, which was a significant issue at that time, and still is in many respects. Women were not in mind at the time… the mindset was not on sex discrimination, and the second wave of the feminism movement hadn’t gathered any steam at that point.”

The broadening of hate speech provisions and recognition of the damage hate speech can inflict on a broader range of groups was slow in coming, says Mahoney.

“It’s been relatively recently… there had to be a significant paradigm shift in the way the law looked at women, and violence, and sexualized violence… that was led by and large by female judges, of which up until that time there had been very few.”

That ‘paradigm shift’ led to a growing recognition that hate speech can have an impact, and reflects a shift away from the more positivistic approach to law which prevailed in years past. This shift acknowledged “the linkages between pornography, violence against women, domestic assault, jobs, ability to succeed in spite of male dominance in the workforce. All of that was quite new, those kinds of arguments hadn’t been heard in Canadian courts before.”

Mahoney likens this process to opening a door, which changes the viewer’s perception of what exists on the other side.

“You open a door an inch, and everything you can see is quite clear in that inch. But once you open the door fully, what you see in that inch can be totally changed, once you see it in that broader context. The Supreme Court decided that judges have to be more contextual… put themselves in the shoes of the complainant.”

“With that came a developing awareness and responsibility of the judiciary to think differently about women.”

That’s not to say it’s easy to prove language – especially song lyrics – constitute hate speech. In a 2003 ruling, an Alberta human rights panel ruled against a man who filed a complaint after hearing the Deicide songs “Kill the Christian” and “Kill All the White People” in a local music store. Among other reasons, the panel ruled that the group targeted -- Christians and white people -- was not a particularly vulnerable one.

Still, for years the hate speech provisions in the Human Rights Act came under fire from groups that felt they made it too easy to restrict speech. Opponents included not only the types of white supremacist groups that routinely fell afoul of the laws, but also organizations such as the Canadian Civil Liberties Association, the Canadian Association of Journalists, and even Noam Chomsky, all of whom worried the laws were too restrictive.

On the other side of the debate, groups such as the Canadian Jewish Congress, Canadian Islamic Congress, and the Canadian Bar Association supported the hate speech provisions. Yet in 2013, following years of controversy and debate, a Conservative federal government repealed the hate speech section of the Human Rights Act entirely.

“It was the most extraordinary repeal of a piece of legislation that I’ve ever seen in my life in law,” said Mahoney. “The very people who wanted it repealed were the very people who had been named by Muslim groups as propagating hatred against them.”

Jo-Ann Kolmes is a retired lawyer who has worked with the Legal Education and Action Fund (LEAF), an organization whose national and provincial branches work to promote, educate and strengthen Canada’s equality provisions under the Canadian Charter of Rights and Freedoms. LEAF also defended the hate speech provisions which the government eventually repealed.

“We characterized and described the issue as an access-to-justice issue,” said Kolmes. “In terms of access to justice there is a far more open avenue for an individual to seek a resolution, to seek redress, to seek protection under a human rights statute as compared to the criminal code.”

As part of the fallout from this contentious debate, changes were brought in early in 2015 to the hate speech provisions which still existed under the Criminal Code (remember, it was only the Human Rights Act provisions that were repealed). For the first time, ‘sex’ was added as an identifiable group under the Criminal Code provisions (also added were national origin, age, and mental or physical disability). This change was the result of a bill designed to strengthen laws against cyberbullying, precipitated by the tragic and high-profile suicides of young teenagers like Rehtaeh Parsons and Amanda Todd following cyberbullying (the bill was also widely denounced for giving government greater powers of online surveillance).

While the addition of women as an identifiable group was in part the result of a law designed to combat cyberbullying, the law can theoretically be applied to any public transmission that incites hatred against an identifiable group. This includes radio and public performances.

Proving speech willfully promotes hatred is still not easy, though. "There is a really strict test... it has to be a willful promotion," says Kolmes. "You have to look at the 'willfully promotes', and at 'hatred'... it's very narrow."

Yet as Mahoney notes, laws are there to serve a purpose, and there's no reason they can't be used to address misogyny in music.

"Sure they could. And they should be, because if they're not used what's the point of having them? ...If they're there, they're meant to be used. You don't pass legislation unless there's a perceived need... it's not there just for decoration."

Pushing for Change

The entire sequence of events at NXNE highlights several inadequacies that exist in preventing the spread of misogyny and hatred against women in both popular and legal culture. As an eloquent editorial in the Toronto-based national daily The Star argued, “After Action Bronson, NXNE needs policy on misogyny”. Emma Healey wrote that “Taking Bronson off the public stage was the right move — the festival isn’t even censoring or condemning him, just moving him indoors — but the debate that led to it sheds light on a far broader, more systematic problem with NXNE and holds lessons for all cultural gatekeepers.”

Healey notes that the organizers – defiant even as they took Action Bronson off the main stage – removed him to avoid controversy, not because they recognized the misogyny of his lyrics and imagery. This, she observes, isn’t good enough, and what’s needed is a consistent policy approach that keeps misogyny out of festivals. “[W]hile NXNE might be prepared to deal with an individual PR fiasco, they have no clear and consistent method of dealing with the far more complex issue of controversial, offensive or blatantly misogynistic content in the art they choose to stand behind. In the end it’s this, and not the fiction of a thousand humourless feminists drunk on the notion of “political correctness”, that eventually leads to dangerous things like censorship and cultural “chilling effects”.

Another editorial in the University of Toronto student newspaper The Varsity also called for the scandal to establish a precedent. “With regards to an artist like Bronson, who has a very well-documented history of saying and doing things that are visibly misogynistic and transphobic, institutions like NXNE have a responsibility to take these actions into consideration, regardless of how popular the artist’s music may be,” wrote U of T student Sofia Luu. “The hip-hop genre isn’t one that is especially starved for talent, and we can do better than showcasing Bronson’s overtly misogynistic work. Let this cancellation set a new precedent for future bookings at YDS and other public spaces in Toronto.”

This isn’t the first time accusations of inciting hate have been leveled against music. Ten years ago, in 2005, controversy erupted in Toronto over the fact that a group of well-known reggae acts, notorious for their violently homophobic lyrics, were booked to perform at the city’s Air Canada Centre on the same day as Toronto Gay Pride. Dancehall musicians Buju Banton, Bounty Killer and Elephant Man had been targeted by the international “Stop Murder Music” movement, which lobbied record labels and concert venues against violent homophobia in reggae music. The musicians’ Canadian concert garnered some protest, and government officials made the bands sign affidavits that they "have read and fully understand" excerpted provisions of the Canadian Criminal Code, Charter of Rights and Human Rights Act. More specifically, the declaration specifies that the performer "will not engage in or advocate hatred against persons because of their sexual orientation."

But ultimately the show went on. And a 2006 human rights complaint brought by an Ontario woman against the HMV music store chain – arguing that the music it sold, especially that of certain rap artists, “promotes hatred toward women in society” -- was dismissed by the Ontario Human Rights Tribunal. The Tribunal said the woman wasn’t discriminated against in her ability to shop for music since the store took care not to prominently display or broadcast the hateful material in question. Likewise, Action Bronson took to the stage in 2012 in Toronto. But perhaps this year’s NXNE debacle is a sign of times changing, and of a demand for greater accountability on the part of musicians and the music industry for the content they produce.

It seems times are changing – both in Canada and abroad. The United States Supreme Court recently legalized same-sex marriage, cyberbullying and misogyny online is increasingly being called out, transphobia is coming under long overdue criticism in the media and online, and now Action Bronson was successfully removed from the stage by a mass online protest. These are welcome signs of change in a public that no longer seems quite as willing to tolerate misogyny, homophobia, transphobia, and racism in its popular culture.

The appropriate balance between freedom of speech, and freedom from hate speech, however, will continue to be a difficult line to draw. But as the laws slowly change to accommodate public demand for greater accountability and sensitivity against hatred and violence, the purveyors of popular culture – labels, musicians and festival organizers – would do well to pay heed.

In the meanwhile – until the laws catch up with public opinion – courageous individuals will continue to mobilize popular culture against misogyny in music. And many artists will support them. Several musicians and bands, such as Canada’s electronic group Austra, supported and promoted the petition against Action Bronson. And then there are other creative and courageous acts against sexism and misogyny, such as this one by Canadian electro-industrial group Ad-ver-sary: when they played the Festival Kinetik (an international electronic music festival held in Montreal) in 2012, they were appalled by the imagery and lyrics of the bands they shared the stage with. So, in closing their set, they used those very bands – whose fans filled the audience – to make a daring statement against misogyny in music. It’s a fitting video to end with.

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